Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 300 (CAL)

Saroj Kumar Sarkar v. State of West Bengal

2002-05-03

Pradip Kumar Biswas

body2002
JUDGMENT Pradip Kumar Biswas, J.: This is an application under section 401 read with section 482 of the Code of Criminal Procedure, 1973 filed at the instance of one Saroj Kumar Sarkar and another seeking to quash the proceeding being Special Case No.1 of 1998 under sections 468/406/408/420/120B/471/472/477A of the Indian Penal Code arising out of Jagatballavpur P.S. Case No. 68 dated 14.8.93 presently pending before the court of the learned 1st Additional District & Sessions Judge, Howrah. The short facts leading to the filing of this revisional application are as follows:- 2. On the basis of a complaint lodged by one Sanjit Bose before the court of learned Chief Judicial Magistrate, Howrah under section 156(3) of the Code of Criminal Procedure and in consequence thereof Jagatballavpur P.S. Case No. 68 of 1993 was started under sections 468/420/120B/409/471/472/477A of the Indian Penal Code against the present petitioners and another. 3. It was alleged in the petition of complaint that the de facto complainant had entered into an agreement with one Sambhu Chakraborty to be his agent for carrying out contractual work of West Bengal State Electricity Board in Howrah District and authorised him to perform three lots of words, but the aforesaid Sambhu Chakraborty did not submit proper accounts to the de facto complainant, then the de facto complainant informed the WBSEB not to issue any work to said Chakraborty, but the WBSEB Authority handed over four other lots to the said Chakraborty in the name of M/s. Electrical Construction and Equipment Co. (the de facto complainant is the proprietor of the said company) and by using the letter head of the de facto complainant's company and without the knowledge or consent of the de facto complainant, drew the materials from the SEB and started the work, and the West Bengal State Electricity Board has written to the de facto complainant claiming a return of Rs. 1,92,000/-. 1,92,000/-. It has been alleged by the petitioners that petitioner No.1 was a retired employee of West Bengal State Electricity Board and retired as a Superintending Engineer 'A' posted at Howrah and petitioner No.2 is still working under WBSEB as Assistant Engineer, Ranaghat Electricity Supply Sub-Division, Ranaghat, and both of them are completely innocent and in no way connected with the offence and they have been falsely implicated in the instant case totally out of grudge and the instant application has been filed against them with an ulterior motive to harass them. 4. It has further been contended that after completion of investigation, the investigating agency submitted charge-sheet No.76 dated 3.12.96 under sections 468/406/408/420/120B/471/472/477A of the Indian Penal Code. Further, it has been alleged that from the F.I.R. itself, it will be clear that the alleged incident took place in between 12.7.90 and 11.6.91 and the de facto complain ant filed this complaint under section 156(3) of Cr.P.C. only on 16.6.93 and on the basis of which the instant case was started on 14.8.93. It has also been alleged that no explanation whatsoever has been offered in the petition of complaint for such inordinate delay and the reason explaining thereof is totally vague and imaginary and thus, the possibility of concoction and for exaggeration in the same cannot be ruled out and the allegations, as has been levelled in the F.I.R. as well as in the charge-sheet do not disclose any offence for which the petitioner may be charged with. 5. It has further been contended that the petitioners acted in their official capacity, placed orders to the various enlisted contractors for execution of rural electrification and other maintenance jobs of WBSEB in the district of Howrah. 6. It has further been alleged that although the F.I.R. was lodged on 14.8.93, yet, the charge-sheet was submitted only on 31.12.96 i.e., after three years from the date of initiation of the case and for starting of this case, no sanction was obtained from the concerned authority, and the petitioners being public servants under section 81 of the Electricity (Supply) Act, 1948 (Act No. 54 of 1948) read with section 21 of the Indian Penal Code, sanction was very much necessary for prosecuting them before a court of law. 7. 7. It has further been alleged that the case was sent to the court of sessions, who after taking cognizance of the offence transferred this case to the court of the learned Additional District & Sessions Judge, 1st Court, Howrah and the aforesaid court had no power to take cognizance except with the previous sanction of the Govt. as required under sub-section (1) of section 197 of the Code of Criminal Procedure. 8. The petitioners filed an application before the court praying for their discharge for which the learned court below after perusing the records and also after hearing the parties was pleased to reject the prayer of the petitioners vide order No.10 dated 11.2.99 and fixed 7.6.99 for consideration of charge. 9. Being aggrieved by and dissatisfied with the aforesaid orders including the order dated 11.2.99, the petitioners have preferred this application before this court seeking to quash the aforesaid proceeding and/or seeking to set aside the order No. 10 dated 11.2.99 alleging that the impugned proceeding is a gross abuse of court and the learned court below has failed to appreciate the legal position involved in this case and has, thereafter, passed the impugned order for which there has been serious miscarriage of justice. Hence, this prayer. 10. I have heard the learned counsel appearing for the petitioner as also the learned counsel appearing for the State. The learned counsel appearing for the petitioners has submitted before me that the proceeding being Special Case No. 1 of 1998 under sections 468/420/120B/409/471/477A of the Indian Penal Code arising out of Jagatballavpur P.S. Case No. 68 of 1993 dated 14.8.93 pending before the court of learned 1st Additional District & Sessions Judge, Howrah cannot proceed against the present petitioners inasmuch as the present petitioners being the public servant by virtue of the provisions of section 81 of the Electricity (Supply) Act, 1948 (Act No. 54 of 1948) read with section 21 of the Indian Penal Code, sanction was very much necessary for prosecuting them before a court of law. In the instant case, sanction having not been obtained against the petitioners the present proceeding cannot be continued and as such the present case should be quashed. 11. In the instant case, sanction having not been obtained against the petitioners the present proceeding cannot be continued and as such the present case should be quashed. 11. Apart from taking the aforesaid plea, it has also been contended on behalf of the petitioners that there was inordinate delay in filing the complaint under section 156(3) and the complaint petition as well as the charge-sheet did not also disclose any specific offence for which the petitioners may be charged with. 12. Mr. Kashem Ali, the learned counsel appearing for the State in opposing the aforesaid claim of the petitioners has contended that although the present petitioners should be regarded as public servant in terms of section 21 and by virtue of the provisions of section 81 of the Electricity (Supply) Act, 1948 (Act No. 54 of 1948), yet, at this stage, absolutely there is no necessity for sanction in prosecuting the present petitioners and he has further contended that the F.I.R. and the collected materials do certainly disclose sufficient materials to proceed against the present petitioners and as such the present proceeding against the petitioners cannot at all be quashed, as prayed for by the petitioners. 13. I have given my anxious consideration with regard to the submissions made by the parties in connection with the above. 14. It is quite well settled principles of law that the court is invested with plenary power to quash the criminal proceeding pending before any court subordinate to it where it appears that the allegations, incorporated in the F.I.R. or in the petition of complaint or in the collected materials, even when they are taken on their face value and accepted on their entirety, without adding or substracting anything from it, do not constitute any cognizable offence and in exercising such power, the High Court is not required to prove into any question as to whether the materials or allegations constituting the offence are trustworthy or not. 15. Here, in this case, the main allegation is that the petitioners being public servant, no sanction was obtained against them for prosecuting them with the present offence in hand. 16. 15. Here, in this case, the main allegation is that the petitioners being public servant, no sanction was obtained against them for prosecuting them with the present offence in hand. 16. It has now been held by the Apex Court that whether sanction was necessary to prosecute a public servant with a charge of criminal mis-appropriation, breach of trust or conversation will depend upon whether the case complained of is inseparably interwined with the performance of the official duty, and that if they do, then sanction is required and if they are unconnected with such official duties, then no sanction is necessary. 17. It has also been unequivocally expressed by the Apex Court that the question whether sanction was necessary or not might have to depend upon from stage to stage having regard to the facts and circumstances of the case. One of the broad tests, as reiterated by the Apex Court, for the purpose of deciding the question whether the offence is committed in the course of official duty or under colour of office is whether the public servant, if challenged, can reasonably claim that what he did, he did in virtue of his office and it could not be shown on behalf of the petitioners at this stage that the requirement of this test has been satisfied in the facts and circumstances of this case. It may so happen that facts subsequently coming to light during the course of the prosecution evidence at the trial might establish the necessity for sanction. The necessity may reveal itself in the course of the progress of the case and it would be open to the accused petitioners to place the materials on record during the course of the trial for showing what their duties were and also that the acts constituting the alleged offence were so inter-related with their official duties so as to attract the protection afforded by section 197 of Cr.P.C. 18. From the present facts and circumstances of this case and materials on record placed before me, all that we are concerned with is whether on the facts alleged in the charge-sheet and disclosed by the police papers, it could be said that what the petitioners are alleged to have done, could be said to have been done in purported exercise of their duties. But, here in the present case, as the materials on record now stand, the aforesaid question cannot be answered definitively in the affirmative so as to warrant a conclusion that sanction was necessary for the prosecution of the petitioners. 19. Moreover, from the materials collected and already available on record, it can not be said that they do not disclose any prima facie offence against the present petitioners. 20. So, having considered the facts and circumstances of the present case as revealed from the materials which now stand on record in the light of the principles ennunciated by the Apex Court on the question of necessity of sanction in connection with such offence as discussed above, I am inclined to hold that this is not a fit and proper case for invoking the inherent or revisional jurisdiction of this court to interfere with the impugned order at this stage. 21. In view of what has been held hereinabove, I am prompted to hold that at this stage this is not a fit case where the court should come forward in exercise of its inherent or revisional jurisdiction to interfere with the impugned order of this case and in the given situation, quashing of the instant proceeding is neither possible nor permissible. 22. The revisional application is, thus, disposed of accordingly. 23. Interim order, if any, shall stand vacated. 24. Let a copy of this judgment be sent down to the court below for information and necessary compliance with direction to proceed with this case as expeditiously as possible. Revisional application disposed of.